June 12, 2015

Kent v. City of Columbia Falls - Bike Path Accident Lawsuit to Proceed

In a 4-3 decision, justices of the Montana Supreme Court remanded the case of Kent v. City of Columbia Falls to trial to be decided on its merits. bikepath.jpg

At its heart, this is a premises liability case. All other defendants aside from the local city government settled with plaintiff. Now, the primary question is whether the city is liable for negligent oversight of design and development of a subdivision where this tragic accident occurred. Initially, a trial court granted city's motion for summary judgment on the public duty doctrine, which holds government entities can only be held liable for individual injuries when there was a breach of duty owed to the individual, rather than the public-at-large. It's a tough hurdle because generally, the government owes a duty to the public, rather than individuals.

A number of states now refuse to recognize the public duty doctrine, but Alabama is not among them. The Kent case shows the tide may be turning within the courts.

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June 3, 2015

Report: Children Injured, Dying Due to Improper Car Seat Use

Auto collisions are a top cause of death for children, which is why Alabama's Child Restraint Law has stringent requirements for use of child safety restraints for those under age 15.
However, it's been well-documented that child safety seats aren't properly used. In fact, the Alabama Department of Public Health reports 4 out of 5 children are improperly restrained in their safety seat. The seats either aren't the right size for the child, the child isn't properly belted in or the seat is incorrectly installed.This is despite the fact that the Centers for Disease Control and Prevention issued research indicating proper use of child safety seats can reduce the risk of death for infant passengers by more than 70 percent and for toddler passengers by 55 percent.

Now, a new study published in the August issue of American Journal of Preventative Medicine underscores that point, finding that older children and minority children were the most likely to be improperly restrained while riding in a vehicle.

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May 31, 2015

Kelly v. State Farm - Establishing Bad Faith by Auto Insurance Firm

Auto insurance companies have a responsibility to deal fairly and in good faith with both insureds and claimants, and to make reasonable efforts to settle claims. A breach of these duties by the insurer will result in the company being responsible for damages sustained as a result - and in some cases, it could mean treble (triple) damages.
While insurance companies are notorious for cutting corners to reduce the possibility of a payout, even in legitimate cases, claims asserting bad faith by an insurer can be difficult to prove.

Alabama has recognized "bad faith" as a tort claim since the 1981 state supreme court decision in Chavers v. Nat. Sec. Fire & Casualty Co. Essentially, the court found there are two ways an insurer can be found to have acted in bad faith.

  • Refusal to settle when there is no lawful basis for the refusal, along with actual knowledge of that fact.

  • Intentional failure to determine whether there was any lawful basis for such refusal.

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May 24, 2015

Ross v. St. Luke's Episcopal Hosp. - Slip-and-Fall Not a Medical Liability Claim, Court Rules

Not all injuries that occur in a hospital are medical liability claims.
This may seem an obvious point, but it's one a fair amount of health care providers make when faced with premises liability claims.

It's a key distinction because claims of medical liability are bound to a very stringent standard of filing and notification requirements, as well as a higher proof burden. Although state guidelines vary on these requirements, this is generally true across the board in all 50 states.

For example in Alabama, the evidentiary and procedural laws are quite extensive. While most civil cases simply requires proof to the jury's reasonable satisfaction, a medical malpractice claim requires proof by substantial evidence. And a poor outcome is not enough. It must be shown the medical professional breached the applicable standard of care for someone in his or her position.

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May 15, 2015

Reckis v. Johnson & Johnson - $63M Product Liability Verdict in Child Injury Case Affirmed

The Massachusetts Supreme Judicial Court has affirmed judgement for a family awarded a total of $63 million in damages - including $13 million for loss of consortium -- following a child's severe reaction to multiple doses of Children's Motrin.
Contrary to points asserted by drug manufacturer/defendant, the Supreme Judicial Court found the failure to warn claim was not preempted by the Federal Food, Drug and Cosmetic Act, that a pharmacologist who testified as to causation evidence was qualified to do so, and that damages awarded to the child and each of her parents were not grossly excessive or unsupported by the record.

This is a tragic tale of what can happen when medical labels we trust don't contain the information we need. It's also an important case in that it reaffirms that just because a company has deep pockets and extensive resources doesn't mean it will prevail in civil court. The civil court system is one of the few places victims can expect an even playing field, and where large companies can be held accountable for failing to uphold its duties to consumers.

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May 8, 2015

Connors v. GEICO - Pedestrian Accident Compensation

Customers can always count on insurance companies to play hardball, and the case of Connors v. Gov't Employees Ins. Co. was no different.
Two pedestrians, husband and wife, were struck by a motor vehicle while on a walk. The driver was backing out of a driveway while the husband and wife strolled past. The wife hit the vehicle with her hand and screamed. The driver initially stopped, and later conceded he saw the wife laying on the ground screaming. Still, he continued moving the vehicle back again, this time running over the husband.

Both pedestrians sustained serious injuries. The husband suffered a traumatic brain injury, as well as injury to his neck, body and limbs. He was taken to a nearby hospital and later to a rehabilitation center, where he died two years later. His wife sustained injuries to her neck, back, leg and arm - not to mention the deep emotional scars she suffered as a result of watching her husband being run-over.

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April 30, 2015

Cline v. Homuth - Accident Settlement Language Must be Carefully Examined

While injury lawyers must be fully prepared to take an auto accident lawsuit to trial if necessary, the reality is many -- or at least portions pertaining to certain defendants -- are settled out-of-court before trial.
Such cases are concluded through what are commonly known as settlement agreements, and they are contractual and binding. They often contain stipulations on release of liability for current and future claims stemming from the accident, and in some cases they will contain confidentiality clauses.

Don't take these as boilerplate forms. t's very important for you and your attorney to carefully read these documents before signing. There may be important information regarding inability to collect future payments or pursue litigation against other parties.

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April 20, 2015

Breathalyzers in All Cars Would Slash DUI Deaths, Injuries by 80 Percent

It's been well-established that ignition interlock devices, now mandatory for DUI offenders in many states, reduce instances of drunk driving, drunk driving injuries and drunk driving deaths. beergarden.jpg

These devices are installed inside a vehicle and require the operator to pass a breath-alcohol test to determine impairment. If the driver's breath-alcohol content is measured above a certain threshold (usually 0.04 percent, or half the legal limit), the ignition locks and the vehicle will not start.

However, the positive effects of these systems are limited to how long they are actually in place. Because they are imposed as a penalty for DUI conviction, they are almost always temporary. But researchers with the University of Michigan Health System wanted to know what would happen if the devices came standard in all new model vehicles - permanently, and not just for those drivers who were being punished.

The results, published in the American Journal of Public Health, are astonishing. Over the course of 15 years, we could potentially reduce the number of drunk driving fatalities and injuries by 80 percent. In real terms, that would be 59,000 lives saved. It would be 1.25 million people spared serious injuries. It would mean $340 billion saved in injury-related costs associated with drunk driving accidents.

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April 12, 2015

Tri-National v. Canal Ins. Co. - Trucking Firm Insurer Must Pay for Accident

The Alabama truck accident that spurred the federal case of Tri-National, Inc. v. Canal Ins. Co. did not result in any severe personal injuries, though it very well could have. trucking.jpg

There was extensive property damage when a semi-tractor and trailer driver collided with another truck. However, no one was seriously injured. Still, the case before the U.S. Court of Appeals for the Eighth Circuit reveals how trucking companies are regarded under the Federal Motor Carrier Act of 1980, and the obligations they have when crashes happen.

While the act was largely an effort to deregulate the trucking industry, it did impose additional requirements for motor carriers that transport property. This includes the responsibility of the carrier to make sure it has the required limits of insurance to cover public liability in the event of a crash. Even if the victim has their own insurance, it does not absolve the trucking company and/or its insurer of responsibility for paying damages caused from negligent operation of these large vehicles.

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April 6, 2015

Cline et al. v. Publix Supermarkets - Wrongful Death of Child Blamed on Cookie

The plaintiff in Cline et al. v. Publix Supermarkets, Inc. et al. had a son who was severely allergic to nuts. She kept Benadryl and an epinephrine pen with her at all times. She carefully read ingredient labels and always questioned whether cross-contamination may have occurred when obtaining food from restaurants, friends or grocery stores. cookie.jpg

Despite all of this, the Alabama woman says her son died of an allergic reaction he suffered after biting into a grocery store cookie that contained walnuts. This was after she says the store employee assured her there were no nuts in the cookie. After taking the cookie home, she even took two bites herself to confirm there were no nuts in it before giving the rest to her son.

However, according to the lawsuit, the boy took three bites before he ran to tell her his mouth was burning. His aunt administered the Benadryl while his mother gave him an epinephrine shot in the thigh. But the boy's condition continued to worsen. As he lost consciousness, his family called for emergency help. His throat swelled. Emergency workers tried to revive him as they rushed him to the hospital. He did not survive.

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March 30, 2015

Bean v. Pacific Coast Elevator Corp. - Crash Verdict Affirmed

An appellate court affirmed a $1.3 million verdict in favor of an auto accident victim who suffered serious injuries after defendant's employee negligently struck a vehicle stopped at a red light. sadatsea.jpg

The appellate court in Bean v. Pacific Coast Elevator Corp. did find trial court erred in how it calculated prejudgment interest, but otherwise affirmed the verdict, despite defense protestations that the non-economic damages - $1.1 million of the total - were excessive.

This case reveals how economic damages - such as lost wages, property damage and medical bills - are only part of what may be considered in a crash case.

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March 20, 2015

Alabama Supreme Court Weighs Wrongful Death in Lemley v. Wilson

It is well-established under Alabama's workers' compensation law that the exclusive remedy workers have to pursue action against their employer is worker's compensation. That means employees in most cases can't sue their company for on-the-job injuries.
However, workers can pursue legal action against third parties who may be responsible for injuries arising from employment.

Such was the case in Lemley v. Wilson, wherein a city-employed worker was struck by a vehicle while directing traffic. He later died of his injuries. The worker's father pursued legal action against the driver who struck him.

The case went to trial, and jurors sided with defendant. However, trial court granted plaintiff's motion for a new trial. Defendant appealed, and the issue of the new trial was heard by the Alabama Supreme Court, which reversed and remanded. The high court ruled there was ample evidence to support jury's findings, even if there was also ample evidence to support plaintiff's assertions.

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March 10, 2015

Alabama v. Hendrix - Drunk Driver Who Caused Fatal Crash Will Not Be Charged

In the spring of 2005, a man who was heavily intoxicated barreled down U.S. Highway 278 shortly before Midnight in Double Springs. He slammed into another vehicle head-on, and the other driver was killed. The drunk driver was severely injured, suffering traumatic brain injury.
A year later, he was indicted by a grand jury on vehicular homicide for causing the death with criminal negligence by committing three traffic violations - driving drunk, speeding and driving on the wrong side of the road. However, before trial, defendant was deemed not competent to stand trial, and the criminal trial judge dismissed the charges with prejudice, meaning they couldn't be refiled. The state didn't appeal this order.

But then six years later, the state moved to indict again on these same charges, in spite of that order, on grounds defendant's condition had improved. Recently, the Alabama Court of Criminal Appeals affirmed the trial court's dismissal of the charges based on the new indictment, finding prosecutors never sought modification of that "with prejudice" order, and therefore had not covered all their procedural bases.

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March 3, 2015

Fewer Alabama Motorists Wearing Seat Belts

An analysis of recent citations for seat belt violations and related fatalities among Alabama drivers reveals a significant problem, one highlighted by the recent death of a teenage couple killed in a single vehicle crash in Bay Minette in January. Neither were wearing a seat belt.
Law enforcement officials report more than 240 people killed in Alabama crashes last year weren't wearing seat belts. The year before, nearly 60 percent of those killed in car accidents in the state were not buckled up. That same year, officials tallied 42,000 seat belt violation citations.

Alabama state troopers are imploring drivers and passengers not to take the risk. The Centers for Disease Control and Prevention notes teen are especially at risk, far less likely to wear seat belts than drivers over 30 and far more likely than their older counterparts to die in a crash.

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February 28, 2015

Herland v. Izatt - Gun Owner Owed Duty to Impaired Guest

The case of Herland v. Izatt began when an intoxicated party guest picked up a loaded gun belonging to the host and accidentally shot herself in the head. firearm.jpg

Although the host/gunowner was not the subject of criminal charges for the horrific accident, the woman's family filed civil negligence action, alleging general negligence, premises liability and negligent entrustment.

While the trial court in the case granted summary judgment to defendant, finding he owed no duty of care to his guest, the Utah Supreme Court reversed. Specifically, the high court ruled that gun owners do have a duty to exercise reasonable care in supplying a firearm to an intoxicated individual.

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